Saturday, July 11, 2020

The Court's Term: Who Won and Who Lost

By Eric Segall

In the words of my friend Professor Josh Blackman (in an email), "what a term!" For one thing, for the first time the American people listened live to some of the Supreme Court's oral arguments. That it took a worldwide pandemic to achieve that result should not go unmentioned. Whether the Court go back to its ancient ways next year is anyone's guess, but sadly it still feels like live streaming the Justices' open and public hearings is at least two pandemics away.

There were at least two obvious winners this term. Gays, lesbians, and transgender persons will finally get legal protection when they are discriminated against because of their sex, and that is an overwhelmingly positive development. It is a little sad that it took the Supreme Court to make that call when our cowardly Congress should have made explicit those protections long ago.

Many people suggested these cases were a win for Justice Gorsuch -style "textualism," while others booed the Court for legislating from the bench.  In reality, the decision was just the Court doing what it thought best all things considered. Most polls show that Americans want legal equality for gays and lesbians, and the Court's decision reflected that consensus. In any event, three cheers for the decision that will move our society closer to full equality for LGTBQ people.

The other big winner this term, perhaps ironically, was religious schools, many of which refuse to hire openly gay Americans (that conflict is coming to a court near you). In two major constitutional cases the Justices interpreted the religion clauses of the First Amendment to provide broad protections for religious schools (religious folk also won a big statutory case involving the Affordable Care Act and contraceptives, but that opinion is not the end of that controversy).

In Espinoza v. Montana Department of Revenue, the Justices held that if states decide to give secular private schools financial assistance they must provide the same assistance to religious schools. Make no mistake, since numerous states do provide tuition vouchers and other assistance to secular private schools, and are unlikely to give that up, Espinoza means our tax dollars will go to help religious schools whether we want them to or not. The Justices cited what they argued were broad and longstanding principles to support their decision, but as I wrote here, there is no originalist basis for the decision, and the Court's ruling is just another example of the Justices making stuff up.

The other big religion case involved two religious school teachers who were fired for allegedly illegal reasons. One was fired when she told her employer she had breast cancer, and the other was allegedly terminated in violation of the federal anti-age discrimination law. By a 7-2 vote, the Court held that anti-discrimination laws could not be applied to these teachers because doing so would violate some combination of the Establishment and Free Exercise clauses. This opinion extended what the Court previously called "the ministerial exception" to essentially all religious school teachers. Justice Thomas' concurring opinion accurately suggested the exception needed a new name.

The Court's overriding of Congress' desire to protect Americans from employment discrimination based on disability and age was unwarranted. We can all agree that religious institutions must be able to hire and fire their ministers without governmental interference. But extending that protection to religious school teachers fired, not for violating any faith-based principles, but for allegedly illegal secular reasons, puts these schools above the law in a way that severely threatens Establishment Clause values. In fact, this case taken together with Espinoza show that the Free Exercise Clause was a big winner this term while the Establishment Clause was once again reduced to meaningless rhetoric.

Picking the winners and losers in this year's big abortion case, which was also the big abortion case four years ago, is complicated. Chief Justice John Roberts joined with the four liberals to strike down a Louisiana law requiring doctors who perform abortions to obtain admitting privileges at a nearby hospital. The Court invalidated an identical Texas law before Justice Kennedy retired, and Roberts stuck by that decision in his concurring opinion mostly on the basis of stare decisis. So for now, women seeking abortions were the winners.

There are, however, two big caveats. As Mike wrote here, Roberts altered the test from that previous case which might in the future give states more leeway to regulate abortions. Moreover, as I wrote here, Trump can now run again against abortion and the Court, and if he wins again, women seeking abortions will undoubtedly be hurt (compared to a Biden Presidency). Moreover, there is every reason to believe the Court will soon whittle away and then eliminate constitutional protections for women seeking abortions.

I am happy to report that the Second Amendment was a big loser this term as the only case the Court decided to hear on the subject was dismissed for mootness (the obviously correct result). The Court also refused to grant cert. on any other gun case. Let's hope this trend continues for as long as possible.

I am also happy to report that, at least for now, thousands of children and young adults avoided the Trump Administration's war on immigrants. The Court held that Trump violated the Administrative Procedure Act when he repealed the Deferred Action for Childhood Arrivals program (DACA). Alas, if Trump is re-elected, this victory will be short-lived because the Court was clear that, done correctly, Trump can legally rescind DACA. Of course if Trump is re-elected...well that's a terrifying subject for another post.

The two cases involving Trump's tax returns and other financial documents were mostly duds with no clear winners or losers. I refer people to Professor Neil Buchanan's fine post last Thursday which makes the same point. Yes, future Presidents now have to worry about state prosecutors pursuing them for allegedly criminal activity, and that is something, but there will still be many defenses available, and of course it is still unclear whether a sitting President can be indicted for a crime, state or federal.

The Court also sent down to the lower courts the cases involving congressional subpoenas with an open-ended four part balancing test which will allow those courts to rule any way they want to and, as the Supreme Court is currently constituted, means GOP Presidents will win future cases and Democratic Presidents will likely lose if and when those cases end up at the Court.

At the end of the day though, I agree with Neil: "This seems to be an instance in which the media decided that these cases were interesting and important because they involve Trump, but no one stopped and said, 'Will anything that we care about in 2020 change, depending on how the Court rules?’ It turns out ... that even high-profile cases might not actually matter very much.  This is one of those times."

There were a few other important cases, including one holding that Native Americans in a huge swath of Oklahoma cannot be tried by the state for certain major crimes. The implications of the Oklahoma case will have to be worked out over time but it certainly appears to be a win for a group that rarely triumphs at the Court. In fact, this case was divided 4-4 along partisan lines before Gorsuch replaced Scalia, and Gorsuch sided with the liberals, most likely because he fancies himself a westerner who is sympathetic to the plight of Native Americans. The governing law here was hopelessly complicated and once again the Justices' priors ruled the day.

Perhaps the biggest winner this term was Chief Justice John Roberts. He only dissented in 2 cases, and is clearly both the swing vote and the Chief, a rare combination. The importance of being Chief is that if he is in any majority, which he almost always will be as the Court is currently constituted, he can assign the opinion to anyone he chooses, which is a more important power than most people realize. In addition, because of his votes in the Court's abortion, DACA, and Trump document cases, he gave the illusion of a Court that will abide by the law regardless of politics. 

That illusion is dangerous. Professor Jonathan Adler argued in a New York Times op-ed that Roberts likes to move the law slowly and incrementally (with a few exceptions such as his shredding of the Voting Rights Act). But the reality is that in this term, like others before, Roberts usually moves slowly when liberals win but rather quickly when conservatives win. He is also a completely faithful servant of the GOP when it comes to all important election and voting rights cases.

The Supreme Court is now the Roberts Court all the way down. He is a big winner, at least for now, and so is the GOP, at least at the highest Court in the land, despite what you may have heard.

2 comments:

Joe said...

there is no originalist basis for the decision, and the Court's ruling is just another example of the Justices making stuff up

"Making stuff up" is the polite term for something denounced in such a way that it is more "making shit up." Anyway, human judging will involve some creation. At least, it always has. So, I reckon "making stuff up" is part of Art. III judging. The battle is on the terms. See, e.g., Originalism as Faith.

Trump can now run again against abortion and the Court.

As Prof. Mary Ziegler has noted, there is likely no end point on this question, which includes no absolute result. It was unlikely that Justice Thomas would his wish and Roe v. Wade was completely overturned. Thus, the likely result would have allowed some running against abortion. A Thomas win would have been grounds for a victory dance and evidence why we need to re-elect Trump. Anyway, this was covered by me and more expertly by Prof. Dorf (including on a podcast) in the past.

On the 2A, the result in the NY case was not too surprising (it was a lousy one) but more so that they granted none for next term. There was strong predictions that they would and four justices surely seemed like they wanted to. Roberts though ...

I'm interested in the Native American case & don't know who had the better argument even if Gorsuch (who cares about Native American interests, including choosing a NA as a law clerk) had more eloquent language. The Puerto Rico case also held back in deciding wider issues, including overturning the "Insular Cases." The move to make D.C. a state suggests non-state residents might get more attention in the long run.

I agree Roberts is a winner as a whole. A loser as Rick Hasen noted is voting rights. And, though we barely notice it, SCOTUS for now is letting the federal government to restart executions after almost twenty years. More than one is scheduled, though are being held up temporarily by courts below, this very month. As to the Trump cases, Marty Lederman's comment on the non-tax return subpoenas sought by Congress is important not to forget. The Roberts Court drew a line, but did a lot of Trump enabling there at any rate.

I support more openness and the live audio helped there some. The path is shown by the top courts in other nations (including Canada and the UK) and states, many state supreme courts doing a better job responding to the pandemic. Video and even a Twitter account included The Supreme Court mostly tried to remain above the fray there, John Roberts not even deigning to briefly reference the special circumstance during the telephonic arguments. Note too him trying to hide his medical emergency (foolhardy; it was going to come out).

The Supreme Court overall came off fairly well as far as it goes (people here are not exactly median reactors there), important with some talk of major change of the courts after the 2020 elections. There is a pending House bill promoting more openness and ethical transparency (see Fix the Court). Some bipartisan support of live audio and even video. I support such things.

I also appreciate the various means online and off including SCOTUSBlog, various Supreme Court reporters (such as Kimberly Robinson), the new Strict Scrutiny Podcast and places like Dorf on Law providing reporting and analysis. I recall when Peter Irons releasing edited oral argument audio was seen as controversial. We have traveled far though we have a ways to go.

Eric Segall said...

Thanks Joe for your thoughtful comments.